IN THE CASE OF:	  

		BOARD DATE:  10 January 2013

		DOCKET NUMBER:  AR20120011934 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reconsideration of his earlier request for his retired pay to be the highest of either captain (CPT)/O-3E (prior enlisted service) or chief warrant officer three (CW3). 

2.  The applicant states, in effect, he was originally placed on the Retired List in his retired grade of CW3 on 3 March 208, his 60th birthday.  He petitioned the Board and was granted relief to be placed on the Retired List in the highest grade he satisfactorily held, CPT.  He then petitioned the Board again for his retired pay to be the highest of either CPT/O-3E or CW3.  The Board denied him retired pay as an O3E but erroneously stated that according to the Defense Finance and Accounting Service (DFAS) website, the January 2012 pay table shows the basic pay rate for an O-3 exceeds that of a CW3.  He disagrees with this statement. 

3.  The applicant provides an internet printout of the proposed 2012 and 2013 military pay charts. 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110022035, on 1 May 2012. 

2.  The applicant provides a new argument which was not previously considered by the Board.  This argument is considered new evidence and warrants consideration by the Board.

3.  The applicant was born on 3 March 1948.  He enlisted in the Regular Army on 7 July 1967 and he was honorably released from active duty on 7 February 1970. He completed 2 years, 7 months, and 1 day of creditable active service during this period of service.

4.  He was appointed as a commissioned officer of the U.S. Marine Corps (USMC) and entered active duty on 8 November 1974.  He was honorably separated from active duty on 7 May 1982 in the rank of CPT.  He completed 7 years and 6 months of creditable active service during this period of service. 

5.  He was appointed as a Reserve warrant officer (WO) in the Army National Guard (ARNG) and executed an oath of office on 13 March 1984.  He served in various positions and he was promoted to CW3 on 9 April 2001.

6.  He was honorably discharged from the ARNG on 31 March 2005 in the rank of CW3 and transferred to the Retired Reserve.  His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows he completed 24 years, 5 months, and 10 days of total Reserve service and had 10 years, 1 month, and 1 day of prior active service, for a total of 31 years, 4 months, and 29 days of service for pay. 

7.  On 7 February 2008, the U.S. Army Human Resources Command published Orders Number P02-801795 placing him on the Retired List in the retired grade of CW3 effective 3 March 2008, his 60th birthday.

8.  On 14 October 2009, in response to his petition to be retired and receive retired pay in the highest grade satisfactorily held (CPT), the Board granted him relief in the form of a correction of his records to show he was retired in the highest grade he had held and his records were subsequently corrected to show he was retired and placed on the retired list effective 3 March 2008 in the rank/grade of CPT/O-3.

9.  On 1 May 2012, in response to a second petition for correction of his records to show his retired pay be the highest of either CPT/O-3E or CW3, the Board concluded he did not meet the statutory requirement of 4 years and 1 day of prior enlisted service prior to his commissioning and thus he was not entitled to retire at the retired pay grade of O-3E.  The Board further advised him that the January 2012 pay table shows the basic pay rate for an O-3 exceeds that of a CW3 and that retired pay is a function of the DFAS.  
10.  Title 10, U.S. Code, section 1401A (Disability, non-regular service, warrant officers, and DOPMA retirement) states the monthly retired pay of a person entitled thereto under this subtitle is computed according to the following table (stated in the law).  For each case covered by a section of this title named in the column headed "For sections," retired pay is computed by taking, in order, the steps prescribed opposite it in columns 1, 2, 3, and 4, modified by applicable footnotes.

11.  Title 10, U.S. Code, section 1401B states if a person would otherwise be entitled to retired pay computed under more than one formula of the table in subsection (a) or of any other provision of law, the person is entitled to be paid under the applicable formula that is most favorable to him.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was placed on the Retired List as a CW3 on 3 March 2008, his 60th birthday.  He requested and was granted relief to retire as a CPT on that date.  

2.  It is unclear if he is contesting the total number of qualifying years of service recorded on his NGB Form 23B or he believes the retired pay rate he is currently receiving based his service is in error.  It is equally unclear if he is requesting the Board to correct his retired rank back to what it was, a CW3.

3.  It appears he may be entitled to retired pay computed under more than one formula.  As such, he should be entitled to be paid under the applicable formula that is most favorable to him. 

BOARD VOTE:

____X___  ____X___  ___X__ _  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR20110022035, dated 1 May 2012.  As a result, the Board recommends that all Department of the Army records of the individual concerned be further corrected by amending his records to show that his retired pay would be based on the formula that was most favorable to him when his records were corrected to show he was placed on the retired list in the rank of CPT/O3 (but he should continue to be addressed with the honorary rank of CPT).




      _______ _  X ______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20120011934





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120011934



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1